R v Hunt

[1994] QCA 440

[1994] QCA 440

COURT OF APPEAL
FITZGERALD P
DAVIES JA

MACKENZIE J

CA No 305 of 1994
THE QUEEN
v.

PAUL ROSS HUNT Applicant

BRISBANE
..DATE 12/09/94
MACKENZIE J: The applicant, who is 45 years of age, was
convicted after a trial in the District Court at Southport of
two offences of rape, an offence of assault occasioning bodily
harm and an offence of indecent assault by way of anal
intercourse. He was sentenced to seven years' imprisonment on
each of the charges of rape; six years on the charge of
indecent assault by way of anal intercourse and two years'
imprisonment for the offence occasioning bodily harm. He had
some previous convictions, most of which were not relevant to
the particular circumstances of the case. However, he did
have a conviction incurred in 1980 for assault occasioning
bodily harm and being unlawfully in a dwelling house, the
circumstances of which involved the entry into a dwelling
house of a woman with whom he had had a relationship and there
committing an assault upon her.

The circumstances of the particular offence with which we are concerned are that the applicant and the complainant had been involved in a de facto relationship. They had ceased cohabiting in January 1993, but had remained in contact and had had consensual sexual intercourse on about four occasions between the date they separated and the beginning of June of 1993 when the offences with which he has been charged were alleged to have occurred.

It was put to the Court that while they lived together, their acts of sexual intercourse were sometimes preceded or accompanied by threats of violence but no complaint was made in respect of those nor did the complainant leave the applicant because of it. On 1 June 1993, the applicant asked the complainant to return an engagement ring that he had given her and the complainant changed the locks on the house to which the applicant had a key. On 2 June 1993, the applicant arrived at the complainant's house but the complainant would not let him enter. He then punched and broke the screen on the screen door; the complainant ran from the house and was pushed over by the applicant. She struck her knee in the process and lost some skin. The applicant then dragged her back inside the house by her hair; he took the telephone off the hook; locked the back door; pushed her into the bedroom and there raped and assaulted her.

After the first act of sexual intercourse, the complainant was thrown on the floor and told to get on all fours. She was then told that she was going to get something that she had never had before and he then committed anal intercourse upon her. After that, he left the room and after obtaining a drink of water and a cigarette for himself and the complainant, he again had sexual intercourse with the complainant. She suffered injuries, bruises, abrasions and tenderness and indications of forceful sexual intercourse to the genital regions.

The applicant's defence was that consensual intercourse had happened. The sentencing Judge took the view that the applicant had demonstrated no remorse whatsoever. That view was plainly open to him in the circumstances. He took into account the community's interest in the imposition of a substantial period of imprisonment and he regarded a case of Spencer as being comparable. It was submitted to us that Spencer was a more serious offence than the present offence. There is, of course, always some danger in trying to relate circumstances of different offences in a mechanical way but I am satisfied on reading the learned sentencing Judge's remarks that he conducted a balancing exercise which took into account various circumstances peculiar to each case and treated Spencer on that basis alone.

It was submitted that in a case of this kind the fact that the offence has arisen from an intimate relationship is a factor which, in at least some circumstances, produces a lower sentence. I would not be prepared to accept that as a general statement although in some circumstances arising out of intimate relationships, there may be found to be mitigating circumstances.

The circumstances of this offence were quite violent and it was conceded that in the event that strangers were involved, a sentence of somewhat more than seven years may have been justified. In all of the circumstances, I am not persuaded that the sentencing discretion has miscarried and, in the circumstances, I would refuse the application.

THE PRESIDENT: I agree. Counsel for the applicant relied on two decisions, Spencer and Beaver, Spencer being CCA No 80 of 1991 and Beaver being CA No 114 of 1992 which, taken in isolation, might provide at least some foundation for his argument, especially the latter, that is, Beaver. However, I am satisfied that on a wider approach, the sentences in this case are certainly not out of the range of a range of a proper sentencing discretion. Indeed, counsel for the applicant accepted that if the complainant and the applicant had been strangers, a sentence of 10 years would not necessarily have been out of range.

It followed that he had to submit that the previous relationship between the applicant and complainant meant that a sentence more than three years lighter was nonetheless manifestly excessive. That submission cannot be accepted without rejecting the possibility that a prior relationship which has been terminated may, in some circumstances, be relevant to the degree of criminality involved in the offence of which a person is convicted and there is nothing in the previous relationship between the complainant and the applicant in this case which, in my opinion, which properly bears upon the level of the sentence to which the applicant should be exposed. I therefore agree with the order proposed.

DAVIES JA: I agree.

THE PRESIDENT: The order of the Court is application for leave to appeal against sentence refused.

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